Following the outlook into common law on the appraisal of a Contractor’s tortious liability under the tort of negligence in the previous article which can be found here: https://blog.cg.co.ug/appraising-contractors-tortious-liability-under-the-tort-of-negligence/ ,it is important to contrast that with civil jurisdictions like France, Germany or Saudi Arabia among others.
How different would the Contractors tortious liability be under a civil jurisdiction?
In this article, while considering how the issue might have been differently addressed in a Civil Code Country, reference is made to the French Civil Code. The structure of French tort law is such that it does not spell out the different torts like negligence, trespass and nuisance but rather provides for them generally in Articles 1240 to 1245 of the Civil Code. There is no limitation on the type of wrong which may arise under these articles since they are drafted to be very wide.
Article 1245-8 provides that the claimant must demonstrate the harm, the defect and the causal relationship between the defect and the harm. These constitute the three elements of the claimant’s burden of proof in order to prove liability. Therefore, there is no need for a duty of care as would have been required by common law. Additionally, there is no need of application of the neighbour principle under French law. The claimant needs to prove the defect and the damages that he is pursuing. The French Civil code does not show how this link between defect and harm should be assessed but it must be direct causal link between the harm and the defect.
Based on this, using an example of an Employer on a building project that has suffered structural failure due to defects in construction and (or) design, the Employer could prove that the defect in the construction and (or)design of the Works caused failure of the structure and the Contractor would be liable under French law. Once the claimants (the Employers in this case) ably prove fault, damage and the causal link between the fault and the damage, they can win all their compensation.
Article 1241 provides that an individual is responsible for harm caused not only by their actions but also by their failure to act or exercise due care. This provision allows one to be liable for one’s omissions which is a departure from common law where in Stovin v Wise[1] it was held that the law does not recognize a duty of care owed to the whole world to take positive action to prevent harm. In Caparo v Dickman[2] terms, imposing such a general duty would be unfair, unjust or unreasonable. Referring to the instant facts, a Contractor would be liable to an Employer for actions that led to structural failure. Additionally, a Contractor would be liable to an Employer due to their inaction or lack of care in ensuring that the structure that was handed over was not under designed and improperly constructed.
Article 1242 provides that one is not only liable for the harm resulting from one’s actions but also for harm caused by the actions of those for whom they are responsible or by things under their care. From this, where a contractor has subcontractors on site, it can be considered that the Contractor is responsible for the Subcontractor’s actions. The Contractor would be open to multiple fronts of liability as a result depending on the different parties that are affected by the different subcontractor’s actions.
Article 1244 provides that a building owner, referred to as the Employer in this article, is liable for the harm caused by its collapse when that resulted from a lack of maintenance or construction defect. This indicates that liability arises from lack of maintenance or construction defects even when the owner of the building is not responsible for the cause of the defects. This is a departure from common law where a Contractor would instead be liable under public nuisance.
In conclusion, in addition to the liabilities of the respective parties already established under common law, French law imposes an additional liability to an Employer where the Employer would be liable to parties that suffer due to the defective building that it owns. The burden of proof required from the claimants differs from that under common law given that the claimants now must fulfil the burden of proof in Article 1245-8. Additionally, Contractors could be open to multiple fronts of liability due to actions of their subcontractors.
[1] [1996] AC 923 (HL).
[2] [1990] 2 A.C. 605.
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